Arms Act (Criminal Case no. 68/2011): The Advocates of the Accused completed their final arguments in answer to the charges under Sections 3 read with 25, and 27 of the Arms Act, 1959, in which it is alleged by the prosecution that on the midnight of 1st / 2nd October, 1998, at village Kankani, the Accused possessed firearms viz. (i) Revolver and (ii) Rifle, without a valid licence, and used the said firearms for hunting, thus committing offences under the above Sections.
The main arguments advanced on behalf of the Accused in defence were as follows:
Charges framed are defective
Sections 25 and 27 consist of various sub-sections. Sections 3 and 5 (referred to in Sections 25 and 27 respectively) also have different sub-sections, requiring different ingredients and considerations. The charge does not specify the specific violation of any provision. Thus, a critical requirement of a clear and unambiguous charge is not fulfilled in this case.
Validity of Arms licence
- The Accused was granted an arms licence on 9.8.1996 by the Commissioner of Police, Mumbai. The case of the prosecution is that the licence had expired on 22.9.1998, as per the endorsement on the licence. Section 15(1) of the Arms Act, 1959 states that a licence shall continue in force for three years, subject to three exceptions. There is no evidence of any of the exceptions applying in case of the licence granted to the Accused. The law is clear that Government cannot amend or substitute statutory rules by administrative instructions. Hence, as per law the license was valid until 8.8.1999, and thus no offence was committed by the Accused on 1st/2nd October, 1998.
- Further, Section 15(3) provides that every licence shall be renewable. Application for renewal can be made even after expiry, and certainly within one month “grace period”. The Licensing Authority issued a show cause notice dated 29.9.1999 to the Accused for cancellation of the licence held by Accused. This shows that the Licensing Authority believed that the licence was valid, or could be renewed.
- As per Rules 54(4) and 57(2) of the Arms Rules, 1962, the Licensing Authority can consider an application for renewal of licence after its expiry if the period between the date of its expiry and the date of application for renewal is not unduly long. The licence can be renewed after its expiry by imposing a penalty for the intervening period, and the licence stands renewed from the date of its expiry. It is necessary to submit the weapons to the Licensing Authority at the time of renewal of licence. When the Accused filed an application for return of weapons for the purpose of renewal, the Ld. Magistrate rejected the prayer for returning the rifle, but returned the revolver. The licence in respect of the revolver was renewed upon payment of penalty, until 22.12.2002 as per the endorsement on the licence. Thus, the said licence in respect of the revolver has been renewed even for the intervening period during which the offence was allegedly committed by the Accused.
- The Licensing Authorities issued a Travel Permit for Rajasthan and Gujarat to the Accused for a period of 30 days from 1.9.1998 to 30.9.1998. The Licensing Authorities, while issuing this permit, were well aware about the date of validity of the licence, therefore they have rightly issued the permit during the validity of the licence, which was until 8.8.1999.
Appreciation of evidence
- The prosecution has not proved possession by the Accused of weapons in Jodhpur. PW – 6, Satyamani Tiwari, a police officer, has said in his evidence, which is uncorroborated by any other evidence, that he found the weapons in the hotel room of the Accused on 29.9.1998 in the presence of three hotel staff. Only one such hotel staff gave evidence, that too on behalf of the Accused, and he denied any search was conducted by PW – 6 in the hotel room of the Accused. Further, there was inordinate and unexplained delay of about two years in recording the statement of PW – 6. It is settled law that delay in recording the statement introduces an aspect of fabrication or manufacturing of false evidence. PW – 6 is a police officer and was very much available throughout during the period of investigation. No explanation is provided by the prosecution as to why his statement is recorded after such inordinate delay. No explanation is given as to why there is no diary entry about his searching the room, nor any warrant to search was issued, nor why he did not file any report about finding weapons or an “expired” licence in the hotel room of the Accused as he claims.
- In any event, there is no evidence at all that weapons were is possession of or used by the Accused on 1st / 2nd October 1998. A rifle is not an article which can be kept in a bag and go unnoticed by the hotel staff etc. According to the prosecution, the Accused was staying at Hotel Umaid Bhawan. The hotel is a public place with several people, including guests, staff and security personnel. No person has stated that the Accused carried a rifle in the hotel.
- It is on record that the weapons belonging to the Accused were brought to Jodhpur by PW – 9 Uday Raghavan on 15.10.1998, well after the alleged offence.
- No attempt was made by the prosecution to show the weapons to the witnesses and get them identified in the court. In a criminal trial inferences are to be drawn from proved facts and not from other inferences. Therefore, no inference can be drawn that the weapon allegedly seen by the alleged eye witnesses is the same as the weapon of the Accused.
- The circumstantial as well as scientific evidence led by the prosecution also falsify the claim of the prosecution that a firearm was used or was the cause of death of any black bucks. The scene of offence panchanama does not show finding of any bullet or empty. The forensic science laboratory (“FSL”) report does not say residue of gunpowder was found at the site. The cause of death of black buck is not proved beyond reasonable doubt. In fact, the first post mortem report prepared by Dr. Nepalia completely rules out the cause of death due to bullet injury. The second post mortem was done several days later and was not conclusive. A ballistic expert is supposed to fire a test bullet to ascertain whether the weapon was capable of firing a bullet and thus was in working condition. This was not done. Thus, the above circumstances rule out use of firearm as a cause of death of black buck.
Sanction for prosecution was invalid
- Section 39 of the Arms Act provides that prosecution cannot be instituted against any person in respect of any offence under section 3 without the previous sanction of the District Magistrate. Section 39 is a safeguard against frivolous prosecution. The Hon’ble Supreme Court of India has held in an earlier case, “The validity of the sanction would, therefore depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it.”
- In the present case the sanctioning authority has failed to determine independently whether to grant sanction or not which is evident from his examination-in-chief in which he has stated that he sought the opinion of Additional Directorate of Prosecution and Additional Public Prosecutor. This vitiates the sanction. The non-application of mind on the part of the sanctioning authority is writ large as can be seen from the following circumstances:
(i) The sanction bears two dates viz. 10.8.2000 and 5.8.2000;
(ii) The sanction is in cyclostyle form, and the blanks were typed by someone;
(iii) The weapons have been described as revolver 32 bore and rifle 22 bore (instead of .22 and .32);
(iv) The reference number on the left hand side of the seal is incomplete;
(v) The residence of the Accused is shown as Mumbai, Police Station Luni, District Jodhpur, and the same is written twice;
(vi) Specific sub-sections are not described for framing of charge;
(vii) Date and place of possession of weapon is not described
Hence on these, amongst other grounds, the Accused be acquitted of all charges in this case.
It is clarified that the above is merely a summary of the arguments advanced by the Advocates of the Accused before the Hon’ble Court. It is for the Hon’ble Court to consider the case made out by the prosecution, and the defence of the Accused, and then pass Judgement in this case. The Hon’ble Court has fixed 25.2.2015 as the date for pronouncing Judgement in this case.